In a statement that portends additional scrutiny of the “working conditions” of college and university athletes, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo has publicly stated her view that scholarship athletes at academic institutions are employees who have the right to organize and to be protected from discrimination and retaliation when they act concertedly to improve their working conditions.
In a memo issued on September 29, 2021, Abruzzo declined to refer to these athletes as “student athletes,” explaining that the term “student athletes” was coined for the purpose of denying college athletes workplace protections. Instead, she asserted that these athletes meet the broad definition of “employee” under the National Labor Relations Act (“NLRA” or “Act”).
The memo announces that, in certain cases, Abruzzo will consider it a violation of the Act to misclassify such players as “student athletes,” or to lead them to believe that they are not entitled to the Act’s protections. Further, because these athletes perform services for, and are subject to the control of, the NCAA and their colleges, Abruzzo said the NLRB will consider pursuing a joint employer theory of liability for NLRA violations.
Abruzzo’s memo proposes a departure from the NLRB’s approach in Northwestern University, 362 NLRB No. 167 (2015), where the NLRB expressly declined to resolve the issue of whether college scholarship football players are employees under the NLRA, but found that, as a matter of policy, it would not exercise jurisdiction over student athletes. In Northwestern, the NLRB noted that working conditions of college athletes are generally set by the NCAA and the athletic conferences in which they play, and thus, union organizing should occur at the conference level, rather than at the school level. The Northwestern Board concluded that because many of these conferences include non-represented athletes and athletes at public universities over which the NLRB does not have jurisdiction, it would not promote labor stability to exercise jurisdiction.
The September 29 memorandum, GC 21-08, also reinstates GC 17-01, which Abruzzo’s predecessor rescinded in December 2017. That 2017 memorandum advocated not only for the NLRB exercising jurisdiction over alleged unfair labor practices involving scholarship football players, but also over faculty at religious institutions and other university faculty and students. On March 12, 2021, the NLRB also withdrew a proposed rule that would have exempted undergraduate and graduate student workers from the right to collectively bargain.
Abruzzo’s memo marks the next chapter in her attempt to expand the scope of the NLRA and to push for more aggressive enforcement actions. These efforts go far beyond student athletes and are likely to touch on every workplace subject to the NLRB’s jurisdiction, whether they have unionized employees or not.